Uzo Nwogu
A legal practitioner, Henry Kelechukwu Eni-Otu, on Saturday said
there is an urgent need to revisit the sentences of a former Chapman,
of the defunct Pension Reformed Task Team (PRTT), Mr. Abdulrasheed
Maina and his son, Faisal.
The Federal High Court, Abuja presided over by Justice Okon Abang,
had on November 08, 2021 sentenced Maina to a total of 61 years
imprisonment but to run concurrently for eight years for defrauding
the Federal Government of the sum of N2.1 billion.
The court jailed Maina after convicting him and his company, Common
Input Property and Investment Ltd, on all the 12 counts filed against
them by the Economic and Financial Crimes Commission (EFCC).
The trial judge had sentenced Maina to eight years imprisonment on
count one, count two attracted five years, counts three and four went
for eight years each. Counts five and six got three and five years
jail terms.
The court also ordered the forfeiture of Maina’s three landed
properties in Abuja and his bullet-proof Sport Utility Vehicles (SUVs)
and other automobiles. They are to be auctioned and the proceeds paid
into the account of the Federal Government.
His company, ‘Common Input and Property Investment’, was ordered to
refund N1.8 billion and $537,983 within 90 days to the Federal
Government.
The judge also ordered the winding up of the firm.
The court also had on October 8, 2021, convicted and sentenced Maina’s
son, Faisal, to 14 years in prison.
Justice Abang found Faisal guilty on all the three-count bordering on
money laundering charges preferred by the Economic and Financial
Crimes Commission, EFCC.
The court convicted in absentia, 22-year-old Faisal, who had since
June 24, 2020, failed to appear for his trial.
But Eni-Otu, who also is the Senior Partner at Law Corridor, Abuja in
a statement opined that both decisions particularly in relation to the
sentences passed by the Court, breed confusion and do not conform with
the rule of law.
The statement was titled, “Abdulrasheed Maina and son’s sentence by
the Federal High Court unfounded in law and a disservice to the
Nigeria State.
According to him, this precedent, if left unappealed and overturned,
will not only set a bad precedent but would also provide an escape
route for persons who have damaged the fabric of Nigeria, through the
endemic act of corruption.
Eni-Otu said, “The news tabloids and outlets have been awash with the
final conclusion of the protracted criminal trial of Mr. Abdulrasheed
Maina and that of his son Faisal Maina, on allegations of money
laundering and mismanagement of pension funds by the erstwhile pension
Boss. This Writer has however found it pertinent to present this
article as a humble contribution to scholarship in order to aid the
public as well as the Judiciary in the future to navigate similar
legal questions.
“The Federal High Court presided by Justice Okon Abang in Abuja on the
7th of October, and 8th of November 2021 convicted and sentenced
Faisal Maina and Abdulrasheed Maina respectively. While Abdulrasheed
bagged an eight-year jail term, his son Faisal, although in absentia,
was convicted and sentenced to 14 years imprisonment. The Court
ordered that Faisal Maina who is at large, having jumped bail be
arrested anywhere he is found in Nigeria and remanded in any
correctional center to serve his jail term immediately. Where it is
confirmed that he escaped from the country after he jumped bail, the
Court directed that the Federal Government should upon tracing him and
tracking him to anywhere outside the country, “legally and lawfully
begin extradition process to bring him into the country to serve his
jail term.
“This Writer’s observation with respect to the Court’s holding in the
duo of the Abdulrashed Maina’s and Faisal Maina cases by deciding that
the sentence passed shall commence from the date of the arraignment of
the convict in the case of Abdulrasheed Maina in the light of the
peculiarities of this case is superficial. While these two sentences
have been received with mixed feelings on different fora, in my humble
view, the sentences passed by the Court in both cases are unfounded,
illegal, unknown to our legal jurisprudence, and cannot stand the test
of time.”
He added, “I will now proceed to lay out my reasons for the above
position. Without prejudice to the right of appeal of parties
exercisable by either parties, the question of whether the convictions
of the duo were reached rightly or wrongly is a finding which I would
leave to the Appellate Court, in the event an appeal is filed and
entered. However, I submit most respectfully that the sentencing
passed by the learned judge was reached erroneously.
“It is imperative to state that The Administration of Criminal Justice
Act 2015 is the extant law that guides Criminal Administration of
Justice in Nigeria and has explicitly laid down the processes for the
administration of criminal justice from the point of investigation to
the sentencing of an accused person. It is therefore essential to
posit that before now, under our criminal jurisprudence, a Court of
law could not proceed in the absence of a defendant, see; Adeoye v.
State (1999) LPELR-SC.178/1997, Okeke v. The State (2003)
LPELR-SC259/2000 and even in the recent case of Dingi Mohammed v.
State (2018) 5 NWLR (Pt. 1613) P540, which was decided based on the
old law, the Apex Court had this to say “Trial in absentia is a
procedure unknown to Nigeria procedural law. It is obviously a
negation of fair trial. A trial of the accused person in his absence
is a sham”, however, since the coming of the regime of the ACJA, as
part of its laudable innovations, trial in absentia is now legal and
permissible upon meeting the conditions enumerated in the ACJA, even
though the permissibility of same is only to the extent of conviction,
not sentencing.
“The ACJA has empowered the Court to proceed with the trial of an
accused person, who has either jumped bail or refused to make his or
herself available for his or her trial. Section 352(4): Where the
Court, in the exercise of its discretion, has granted bail to the
defendant and the defendant, in disregard of the Court orders, fails
to surrender to the Order of Court, or fails to attend court without
reasonable explanation, the court shall continue with the trial in his
absence and convict him unless the court sees reasons otherwise,
provided that proceedings in the absence of the defendant shall take
place after two Adjournments or as the court may deem fit.”
Eni-Otu further said, “The Court rightly proceeded with the trial of
Faisal Maina being that the Court had earlier granted him bail in the
exercise of its judicial and judicious discretion, which the defendant
violated by refusing to make himself available for his trial, hence
the provision of the ACJA on trial in absentia was rightly invoked.
“However, the sentencing of Faisal in abstentia was not in tandem with
our extant laws. The ACJA only empowers the Court to proceed with the
trial of an accused person where he fails to attend the court
proceedings to the extent of either making a finding of guilt or not
guilty. The Court, however, can only pass its sentence when the
convicted person is before the Court and anything to the contrary,
would be at variance with the provisions of the ACJA. This submission
is fortified by Section 352(5) which provides that: “the court shall
impose a sentence only when the defendant is arrested or surrenders to
the custody of the court”. It is important to note that the word
‘shall’ in any provision connotes compulsion and an obligation, this
position was given credence in the case of Speaker Kaduna State House
of Assembly & Ors V. Nkom & Anor (2019) LPELR-50961(CA) the Court held
that; “The word “shall” in its ordinary meaning is a word of command
which is normally given a compulsory meaning. The word is intended to
denote an obligation. The word “shall” when used in a statutory
provision imports that a thing must be done. It is not merely
permissive, it is mandatory.
“The consequential order which was further made by the judge to the
effect that Faisal Maina should be arrested anywhere he is found in
Nigeria and remanded in any correctional service center to serve his
jail term immediately, and if confirmed to have escaped from the
country, the federal government should upon tracing him to any country
legally or lawfully extradite him to serve his jail term in the
country, in the face of the provision of Section 419 of the
Administration of Criminal Justice Act 2015 which provides that;
“A sentence of imprisonment takes effect from and includes the whole
of the date on which it was pronounced; is an aberration of justice.
The implication of this order is substantially far-reaching, in the
event the convict is not arrested or extradited to Nigeria within the
period of 14 years, then the sentence would have been spent and the
convict will no longer serve the jail term. This is because a sentence
of a Court counts from the day such is pronounced as earlier
highlighted.”
He further stated: “In the same vein, a cursory perusal of the above
section further proves that the sentence passed on Abdulrasheed Maina
to eight years in imprisonment running concurrently beginning from
October 25 2019, the date he was arraigned, is equally inappropriate
being that it violates and negates the presumption of innocence of a
defendant standing trial of a criminal offence, if the period while he
was standing trial, for the Prosecution to disprove his innocence,
would now be calculated as part of his punishment and sentence,
particularly in the face of the peculiar circumstances of his case.
The Courts have only in rare circumstances ruled that the imprisonment
of a convict to run from the period of his detention till when the
imprisonment term is completely served, where under Allocotus the
Defendant/Convict pleads that he has been unreasonably detained for a
protracted time in comparison with his sentence, with particular
reference to the nature of offence and the absence of bail.
“In fact, the sentence is a disservice to the Nigerian state, bearing
in mind that justice is a three-way traffic, justice for the State,
the Defendant and the society. How would the Court have included
period when the defendant was equally on bail, when he jumped bail,
until his re-arrest by security operatives.
“By the wordings of the sentence, it connotes a possibility that he
will spend only five years in prison, calculating from the day he was
arraigned in Court by the Economic and Financial Crimes Commission.
This is a flagrant abuse and total neglect of the provisions of
Section 419 of the Administration of Criminal Justice Act, 2015 and
equally defeats logic and justice. For justice must not have been
done, but must indeed be seen to have been done.
“In view of this, there is an urgent need to revisit both decisions
particularly in relation to the sentences passed by the Honourable
Court, as the present sentence breeds confusion and does not conform
with the rule of law. This precedent if left un-appealed and
overturned, will not only set a bad precedent but would also provide
an escape route for persons who have damaged the fabric of our nation,
through the endemic act of corruption.”